his not looking out or from other causes, and such failure either directly or indirectly contributed to the collision, he could not recover." Leave to appeal granted. There can be no recovery for an injury even from the gross negligence of another, unless the plaintiff be free from culpable negligence on his part: Bush v. Brainard, 1 Cow. 78; Law v. Crombie, 12 Pick. 177. Nor if the wrongful act of the plaintiff co-operated with the misconduct of the defendant to produce the damage sustained: Tonawanda Company v. Munger, 5 Denio, 255; Williams v. Michigan Central Railroad, 2 Mich. 259. In an action for an injury to the plaintiff, resulting from the negligence of the defendant, the care required of the plaintiff is that degree of care which may be reasonably expected from one in his situation; that is, reasonable care; and if this degree of care be exercised by him, the want of a greater degree will not preclude him from a recovery for the negligence of the defendant: Beers v. Housatonic Railroad Co., 19 Conn. 566. Although a child of tender years may be in the highway through the fault or negligence of his parents, and so be improperly there, yet if he be injured through the negligence of the defendant, he is not precluded from his redress. If the defendant know that such a person is in the highway, he is bound to a proportionate degree of watchfulness-to the utmost circumspection-and what would be but ordinary neglect in regard to a person of full age and capacity, would be gross neglect as to a child: Robinson v. Coxe, 22 Verm. 213 *LING v. CROKER. June 12. [*760 Upon a motion for a new trial in an action of crim. con., on the ground of surprise,—Semble, that the affidavit of the plaintiff's wife cannot be received for any purpose. THIS was an action for criminal conversation, tried before Willes, J., at sittings at Westminster after last Hilary Term, when the jury returned a verdict for the plaintiff, damages 10007. Edwin James, Q. C., in Easter Term last, moved for a new trial, upon affidavits tending to impeach the propriety of the conclusion which the jury came to upon the subject of the handwriting of certain letters of a most disgusting character which were produced on the part of the defendant, and which were alleged to have been written by the plaintiff, whilst in the Crimea, to his wife; and also on the ground that the damages were excessive. [WILLES, J.-Have you any affidavit of surprise,-that the genuineness of the letters was disputed at the trial? I must confess I thought the evidence as to the handwriting was most unsatisfactory.] There is no affidavit of surprise according to the strict technical rule; but that can be supplied. The letters were, it seems, handed by the lady to the defendant's attorney as the genuine letters of her husband; and he had no reason to doubt that they were so. We have also her affidavit on the subject. [CRESSWELL, J.-We cannot look at the wife's affidavit.(a) WILLES, J.-The affidavits of the parties can at best only be received for the purpose of excluding conclusions.] If the wife's affidavit were offered for the purpose of a denial of the alleged adulterous intercourse, one could perceive the force of the objection: but here it relates to a collateral and independent fact. [CRESSWELL, J.-That can make no *difference.] It is somewhat singular, that, in these cases, the *761] law excludes the only persons who can give direct evidence. [COCKBURN, C. J.-It was thought expedient by the legislature to exclude them,(6) on the ground of the public scandal that would result from allowing them to be examined. Before we grant a rule on the ground of surprise, we must be satisfied that there are legitimate materials to justify a further investigation of the matter.] There is abundant evidence upon the affidavits which steers clear of the difficulty. The learned counsel read several affidavits. COCKBURN, C. J.-I think sufficient ground has been shown to justify us in granting a rule; but there should be an affidavit of surprise, as well as an affidavit verifying the plaintiff's handwriting. As to the wife's affidavit, it must not be considered that we decide upon its admissibility on this occasion. It may be left open to discussion. CRESSWELL, J.-As at present advised, I entertain a very strong opinion that neither the affidavit of the wife nor that of the defendant can be looked at for any purpose in cases of this sort. COCKBURN, C. J.-At all events, they will not warrant us in granting a new trial, without other evidence. E. James, Q. C., on a subsequent day, moved to postpone the argument, on the ground that the defendant would have to ask the court, when the rule came on, for leave to file affidavits in answer to the matters contained in the plaintiff's affidavits, under the 45th section of the Common Law Procedure Act, 1854 (17 & *18 Vict. c. 125), and *762] for that purpose it would be necessary to refer to the allegations in certain proceedings now pending in Doctors Commons, which would not be published until some time in July. COCKBURN, C. J.-The only ground of the motion for a new trial, is, that the jury came to a wrong conclusion on the subject of the plaintiff's handwriting to certain letters. What you suggest may be a very good reason for postponing the trial, in the event of the rule being made absolute; but it certainly affords none for postponing the argument. Upon cause being shown, it appeared that the defendant's attorney had had distinct notice befere the trial that the plaintiff intended to (a) See Hawker v. Seale, 17 C. B. 595 (E. C. L. R. vol. 84). dispute the handwriting to the letters in question; and exception was taken to the reception of the affidavit of the plaintiff's wife. CRESSWELL, J.-I was no party to the reading of Mrs. Ling's affidavit in the rule: and I still entertain very grave doubts whether such. an affidavit ought to be listened to for any purpose. The whole court thought that the rule was answered. Rule discharged. *ATKYNS v. PEARCE. June 12. [*763 A. went abroad in 1852, leaving his wife and three children here, with (what the jury found to be) a sufficient provision for their proper maintenance in his absence: on his return, in 1856, he found that his wife had formed an adulterous connexion with another man, who lived with her, and passed by her husband's name, and he immediately removed his children :-Held, that, under these circumstances, A. was not liable for medicine and attendance furnished for his children at the wife's request, although the plaintiff was not aware of the state in which she was living at the time. THIS was an action by the plaintiff, a surgeon and apothecary, to recover the amount of a bill for medical attendance upon the wife and children of the plaintiff from December, 1855, to September, 1856. The cause was tried before the secondary of London on the 20th of May last. The facts which appeared in evidence were as follows:The defendant left England in May, 1852, and went to Australia; and he returned to England in April, 1856. When the defendant left this country, his wife remained here with three children: on his return, he found that his wife had during his absence formed an acquaintance with a man named French, with whom she was living at Hoxton, where he was known by the name of Pearce, and by whom she had had two more children. The defendant thereupon left her, taking away with him the three elder children. The plaintiff's claim was made up partly of attendances on the wife in her two last confinements, and partly of charges for medicine and attendance upon the children; but, at the trial, he abandoned the whole of his demand except that which related to attendances upon the three legitimate children. Evidence was given on the part of the defendant to show that, during his absence from England, his aunt, who was his guardian and trustee, had at his request paid to his wife the rents of certain property to which he was entitled, the sums so paid to her in the whole amounting to 4777. and it was submitted, on his behalf, that the allowance made to her in his absence, *and the wife's adultery, repelled the pre[*764 sumption of agency, so as to make him responsible for her con tracts. The secondary left it to the jury to say,-first, whether the allow ance was sufficient,-secondly, whether there was sufficient evidence of adultery. The jury found both these questions in the affirmative: and the secondary thereupon directed a verdict to be entered for the plaintiff for 77. 108. 3d., the amount of the charge for attendances on the three legitimate children,-reserving leave to the defendant to move to enter a verdict for him, if the court should be of opinion that the plaintiff was not entitled to recover anything. Pearce, on a former day in this term, obtained a rule nisi accordingly. Raymond showed cause.-The wife is the general agent of her husband to bind him by contracts for necessaries for herself and children: Ruddock v. Marsh, 1 Hurlst. & N. 601 :† and this presumption is rather strengthened where he goes abroad leaving her here to take care of his children. [COCKBURN, C. J.-If she acts as such agent. CRESSWell, J.-The plaintiff dealt with her as the wife of French. Supposing him to be her husband, did he not give credit to him?] It did not appear that the plaintiff ever saw French: nor was there the slightest pretence for suggesting that he was cognisant that the woman was living in a state of adultery, or that she had any allowance. There was, in truth, nothing to cut down the general presumption of agency. In Chitty on Contracts, 6th edit., p. 152, it is said: "A wife, with regard to certain contracts,―e. g., such as relate to necessaries for her husband's family,—is regarded primâ facie as possessed of a general authority, *765] arising from the duty and liability of the *husband to provide his wife and children with necessaries."(a) And at p. 165, the learned author, treating of cases where the wife's adultery will not afford a defence against a claim for necessaries, says: "Where it appeared that the defendant's wife haviing committed adultery, he separated himself from her, but left her in his house with two children bearing his name, and without making any provision for her in consequence of the separation, and she continued to reside in the house in a state of adultery,—it was held that the husband was liable for necessaries furnished to her in the house in which she was so left with the children; it not appearing that the plaintiff knew, or might readily have known, the circumstances under which she was living:" Norton v. Fazan, 1 B. & P. 226. Eyre, C. J., in that case, says, "If the defendant in another action brought against him by some other tradesman shall be able to establish the notoriety of his wife's situation, he may defend himself. But, as the case stands at present, this woman appears to have been living in a house in which she was placed by the defendant himself, together with two children bearing the husband's name, both of whom were born in wedlock. It is true that she had an adulterous intercourse with another man, but that was not found to be (a) See per Lord Abinger, Freestone v. Butcher, 9 C. & P. 643, 647 (E. C. L. R. vol. 38), Read v. Legard, 6 Exch. 636,† and Emmett v. Norton, 8 C. & P. 506 (E. C. L. R. vol. 34). known to this tradesman."(a) If the defendant had left his children under the care of a servant, such servant would have had authority to contract in his name for necessaries for their support. [COCKBURN, C. J.-Not if the servant was supplied, as the jury found the wife was here, with *ample means to furnish herself and the child[*766 ren with necessaries suitable to their station.] In Ruddock v. Marsh, the jury were told that it was no defence to the action that the defendant had regularly supplied his wife with money sufficient to have kept his house without running him into debt: and the court upheld that ruling. [CRESSWELL, J.—If that case is to be sustained, it must be upon the supposition that the wife was acting with the husband's cognisance. Here, the husband was abroad during all the time of the adulterous intercourse. WILLES, J.-Suppose the husband and wife. living apart, and the husband gives the wife a competent allowance, and a tradesman supplies her with goods, is the husband liable?] Probably not. [COCKBURN, C. J.-Does not all the authority of the wife cease when she quits her husband's roof, and goes to live with another man? Is the adultress still clothed with all the authority of a wife?] Suppose, instead of being left with the wife, the children had, as before suggested, been intrusted to the care of a servant or a governess, and she had misconducted herself,-would the parent cease to be responsible for necessaries ordered by her? [COCKBURN, C. J.-That is a totally different question. The authority of the wife is derived from the conjugal relation. That tie severed, the authority ceases.] It cannot be supposed that the man intended his offspring to starve. Besides, here he admits his liability by offering a compromise. The distinction between a special and a general agency is well explained in Story on Agency, §§ 17, 126. [*767 Pearce, in support of his rule, was stopped by the court. COCKBURN, C. J.-I am of opinion that the rule to enter a verdict for the defendant in this case must be made absolute. It appears that the defendant, having gone to Australia, left his wife with his three children in this country; that, in his absence, the wife formed an adulterous relation with another man, who assumed her husband's name, and lived with her; and that the plaintiff during that period provided medicine and attendance for the children, having no knowledge, and apparently no means of knowledge, of the state in which the wife was living. And the question is, whether under these circumstances she had authority to bind her husband. It seems to me that she had not. The fact of her living in a state of adultery divests her of all the authority which arises out of the marital relation. But it has been ingeniously put by Mr. Raymond, that, although the wife by her misconduct might have ceased to possess the general authority (a) See Addison on Contracts, 4th edit. 709, where this case seems to be put upon the only ground upon which it is sustainable. |